GANPAT Vs. KISHORE

JUDGEMENT

(1.) This appeal arises out of a suit for possession of agricultural land mentioned in the plaint and for recovery of Rs. 500 on account of mesne profits instituted by the plaintiff-appellants against the defendant-respondent alleging that the plaintiffs are the owners of the suit land which was purchased by them from one Ganesh Das, that the defendant-respondent was the tenant of the suit land under Ganesh Das but for non-payment of rent he was got ejected and Ganesh Das had taken actual possession of the vacant land on 12.8.1960 and of the land under crop on 15.12.1960 and it was thereafter, that the sale of the suit land was effected in favour of the plaintiff-appellants by Ganesh Das, and that the plaintiffs had sown Kharif crop of 1961, but Kishore defendant took forcible possession and maintained the same from Kharif 1961 to Rabi 1963 for which period the plaintiffs assessed their loss to be Rs. 500. Defendants 2 to 9 were proceeded against ex parte. Defendant No. 1 (Kishore) was the one who contested the suit on the ground that he was the tenant of Ganesh Das and later on that of the plaintiffs and continued as such till the date of the filing of the suit. The said pleadings of parties led the trial Court to frame the following issues -

(2.) The only point that the learned Counsel for the appellants has urged is that as to whether the defendant-respondent Kishore is a trespasser or not has to be seen on the date on which he entered into possession and not on which the suit was filed. I find no merit in this contention of the learned Counsel. Even if for the sake of argument it is accepted that the possession of the defendant to start with was not permissive but later on the character of his possession could change to that of an owner, a mortgagee', a tenant, a licensee or a donee. So the Court has to see the nature of the possession of the defendant on the date on which the suit is filed. The position of the parties has to be seen on the date on which the suit is filed. If at the relevant time the possession of the respondent Kishore is held to be permissive, then the fact that some years ago he was in forcible possession of the land is of no consequence and once a Court of fact, on the basis of the oral and documentary evidence, comes to a conclusion that at the relevant time the respondent Kishore was in cultivating possession of the suit land as a tenant, then sitting in second appeal it is not open for me to re-appraise the evidence.

(3.) No other point has been urged before me by the counsel for the parties.