M AMBA SAHAI Vs. GOPESHWAR BABU MEHRA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for possession over a house. The plaintiff alleged that he was the zamindar of mohal Basanti Har Prasad in village Nekpur Gauntia Beldaran, that the house in dispute was in the occupation of a 'riyaya', Rajjoo Lal, Who was arrayed in the suit as defendant 2, that in August, 1935, the house was sold by Rajjoo Lal in execution of a simple money decree against him and was purchased by one Chet Ram who sold it to Gopeshwar Babu Mehra defendant 1, that there was a custom in village Nekpur Gauntia Beldaran that no 'riyaya' could transfer the site of the house, that the transfer of the house in execution sale was contrary to the custom and was not binding on the plaintiff-zamindar and that, therefore, he was entitled to take possession of the house. The plaintiff further pleaded that Rajjoo Lal was a 'chantidar' (licensee), that he had executed an 'Ijazatnama' and had paid rent for the site over which he had constructed the house in dispute and that as such the custom prevalent in the village applied to him. Rajjoo Lal did not contest the suit; only Gopeshwar Babu Mehra defendant 1 contested it. His case was that the plaintiff was not the owner of the site, that village Nekpur Gauntia Beldaran was not an agricultural village, that the custom pleaded by the plaintiff did not prevail in the village and that the execution sale of the house was perfectly valid. The trial Court held that the village was divided into two portions - one portion was to the north of the railway line and the other was to the south of it that the portion to the north of it, in which the house in dispute was situated, had ceased to be agricultural and was a part of the city of Bareilly for, at least, 20 years before the institution of the suit, that Rajjoo Lal and his ancestors, who were 'beldars', were 'riyayas' of the plaintiff who was the owner of the site, that the custom alleged by the plaintiff prevailed in the entire village including the portion which had ceased to be agricultural and in which the house in dispute was situated and that, therefore, the execution sale of the house and its transfer by Chet Ram to Gopeshwar Babu Mehra defendant 1 was void. In the result, it decreed the suit of the plaintiff. The lower appellate Court differed and held that the portion of village Nekpur Gauntia Beldaran, in which the house in dispute was situated, had ceased to be an agricultural village, that there was no presumption that the custom of non-transferability of the sites by 'riyayas' applied to the portion which had ceased to be agricultural, that the mere fact that Rajjoo Lal was a 'beldar' did not imply that he was a 'riyaya' of the plaintiff, that Rajjoo Lal was not, in fact, an agricultural labourer and that it was not established that the house in suit was given to him or to his ancestors by the plaintiff under a license. Therefore, it allowed the appeal of the defendant. Against this order of the lower appellate Court, the plaintiff has come to this Court by way of second appeal.

(2.) There are two main points to be considered in the case :

(3.) To determine both these points it is necessary to find whether the locality in which the house is situated is an agricultural village or not. Both the Courts below have found that the village Nekpur Gauntia Beldaran was at one time an agricultural village. This village is divided into two portions by a railway line. The house in dispute is situated in the portion lying to the north of the railway line. It is the concurrent finding of both the Courts below that this portion had become a part of the city of Bareilly and is no longer an agricultural village for at least the last 20 years. In an agricultural village the zamindar is the owner of every inch of the land. If a resident is an agriculturist or is a workman whose services are needed in the interest of the village community, the presumption is that such a person occupies his house with the leave and license of the zamindar and is, therefore, a licensee. But if the occupier of the house is neither an agriculturist nor a person such as described above, his occupation is not presumed to be by leave or license. He will then be deemed to be in occupation by adverse possession. Since the portion of the village in which the house in dispute is situated has ceased to be village, no presumption of his residence therein by leave and license of the zamindar can be raised. In his case evidence will have to be led to show that he came into occupation of his house at a time when the locality was agricultural, in which case the presumption about his residence being by leave and license will be drawn, and once drawn will continue to be drawn, or it will have to be established that in fact the person in question came into occupation of his house by leave and license of the zamindar. The plaintiff's case was that at one time the village was agricultural and that at that time Rajjoo Lal's ancestor Ganga Ram was in occupation of the house, and that since he was a 'beldar', i.e., a labourer, he should be presumed to be in possession as a 'riyaya'. The plaintiff's case further was that Rajjoo Lal himself was a licensee having executed a deed of license (chantinama). None of these contentions can be accepted. Ganga Ram seems to have occupied some house in the village but there is no evidence to show that he occupied the house in dispute. Indeed this could not be so because Rajjoo had purchased the materials of the house from certain persons, and had not therefore inherited it from his ancestors. The fact that Ganga Ram or Rajjoo Lal was a 'beldar' does not establish that he was in occupation of his house by leave or license of the zamindar. It is not the caste of the occupier that matters, it is his 'occupation' that enables the presumption of his possession as a licensee to be raised. It has been found by the Courts below that Rajjoo Lal does not work as a labourer. Therefore no presumption can be raised about Rajjoo Lal occupying the house as a licensee. His occupation would, therefore, be deemed to be adverse to the zamindar and he acquired proprietary title thereto after 12 years' possession.