W FITZPATRICK Vs. GEORGE WALLACE AND OTHERS

JUDGEMENT

(1.) The defendant in this case is a breeder of horses, and this suit is brought to recover possession of about 30 bigas of land in Basdeopur, occupied by the defendant for grazing purposes and as part of an exercise ground for the horses. The defendant, Mr. George Wallace, and his predecessor, Mr. Adolphus Wallace, have been in possession of the land from the year 1854, and have paid rent regularly to the zemindar to the end of 1272 (September 1865). The plaintiff claims under a lease granted by the zemindar, dated the 27th Bhadra 1268 (September 1861). The Principal Sudder Ameen, affirming the judgment of the first Court, dismissed the suit on the ground that the defendant had a right of occupancy under the 6th section of Act X of 1859.* From this decision the plaintiff appeals.

(2.) We might dismiss the appeal at once, because there is nothing to show that the defendant's right of possession was ever legally determined, either by any notice to quit or demand of possession before the institution of the suit, or in any other way. The circumstances under which, notwithstanding the lease to the plaintiff, the defendant was allowed to continue to pay rent to the zemindar are apparently not explained.

(3.) It was contended that the judgment of the lower Appellate Court is erroneous on the ground that Mr. Wallace is not a ryot, and that land occupied for the breeding and training of horses, is not land used for agricultural purposes, so as to be within the purview of Act X of 1859.