BHOLA NATH Vs. MAHARAO RAJA SAHEB BUNDI STATE

JUDGEMENT

(1.) The plaintiff-appellants in this Second Appeal claim that a pond bearing Khasra no. 1553/2 situate in Mohalla Surajkund of the city of Varanasi. was originally the sole property of the defendant. Maharao Raja Saheb Bundi State, Rajasthan. on which the plaintiff, ancestors and the plaintiff had been in possession as pattedars since the settlement of 1291 F. However, in denial of the plaintiff's right, the defendant gave a Patta for pisciculture in the said pond to one Bedi on the 2nd Dec. 1946. After obtaining the Patta. Bedi tried to dispossess the plaintiff, but was unsuccessful. We thereupon initialed a proceeding under Section 145. Cr. P. C. In respect of the pond, which was attached. but after inquiry. it was released in the plaintiff's favour and its possession was restored to the plaintiff on the 14th Dec. 1947. Bedi thereupon instituted a suit, which was decreed by the trial Court, but was dismissed on appeal by the plaintiff. Bedi filed a second appeal in this Court. That was dismissed on the Ist Dec. 1959. The plaint goes on to state that it is apparent from the aforesaid fact that Bedi could not get possession of the pond under the Patta executed by the defendant rather the plaintiff continued in possession, and, in this manner, the plaintiff has continued in adverse possession for over 20 years in denial of the defendant's rights over the pond in suit and has prescribed full ownership thereof. No suit was filed by the defendant for possession against the plaintiff. The defendant's rights over the pond have been lost on the enforcement of the Urban Areas Zamindari Abolition and Land Reforms Act. 1956, and he has now no right of ownership, or of any kind whatsoever, in the pond. It was also pleaded in the alternative that in case the court found that the possession of the plaintiff was not adverse against the defendant, he continued as a tenant by holding over after the expiry of the Patta in his favour, and, under the terms of the Patta. he is a permanent licensee and not liable to ejectment from the pond. By an amendment of the plaint. It was pleaded that Pattas were granted to the plaintiff's ancestors from time to time and the last such document was Ext. A-5 for the period 15th July, 1941 to the 14th July, 1944. Since the relationship of lessor and lessee had already come into existence under earlier document, it was not necessary to get Ext. A-5 registered, and even if it was necessary to have it registered, the plaintiff and his ancestors had continued to be lessees and the document (Ext. A-5) is admissible for collateral purposes of determining the nature of their possession. It was further pleaded that the right of fishing was a licence coupled with a grant and profit a prendre. The relief claimed was a perpetual injunction restraining the defendant from interfering with the plaintiff's possession over the pond in suit.

(2.) The defendant claimed to be the owner in possession of the pond in suis and also having given the right of pisciculture to Bedi in the year 1946, but denied the plaintiff's claim. It was pleaded that the pond was being given for pisciculture to different persons from time to time and was given to the plaintiff also on one or two occasions and he had executed a Qabuliat in favour of the defendant, which way duly registered on the 16th July, 1938 for permission to carry pisciculture during the period 15th July, 1938 to 14th July, 1941. It was always a condition of those documents that the defendant could without notice, revoke the permission and to make a new settlement of the pond with any other persons, and the plaintiff or persons like him were also bound to leave the pond forthwith on being ordered to do so by the defendant or his officers. It was then pleaded that whenever anyone was permitted to carry on pisciculture in the pond, he executed a Qabuliat for the same. About Bedi, it was pleaded that he never carried on any pisciculture in the pond, and the defendant was not aware of any litigation between Bedi and the plaintiff. Lastly, it was pleaded that the plaintiff is not in possession of the pond, and the defendant was in its continuous possession. Section 34 of the Specific Relief Act was also pleaded as a bar to the suit, apart from other technical pleas. A large number of issues were raised at the trial. The trial Court dismissed the suit. The lower appellate court has confirmed the trial Court's decree.

(3.) The only questions, which survive and have been pressed in this Second Appeal, are whether the plaintiff is the lessee Or permanent licensee of the pond in suit and continues to be in possession of the same. The plea of acquisition of ownership by adverse possession, which was raised at the trial, has not been pressed before me, and rightly so, for it is indisputable that the plaintiff entered upon the pond for purposes of pisciculture either as a lessee or licensee, and having continued in possession as such, he is estopped, by Section 116 of the Indian Evidence Act. from denying the title of his landlord or licensor during the continuance of the tenancy or possession under the licence.