GANESH PRASAD Vs. SHIB SINGH

JUDGEMENT

(1.) THIS is a plaintiff s appeal arising oat of the following circumstances. In 1884 the defendants sold their Zamindari in a certain village with two groves situate thereto to the predecessor in title of the plaintiff. It is alleged that in the year 1914 the defendants ejected the plaintiff s leasee from one of the grove?, whereupon certain proceedings were taken in the Criminal Courts which ultimately ended in the acquittal of the defendants, It is not denied that, so far as the other grove is concerned, the defendants have ever since the sale of 1884 continued in possession thereof. The plaintiff s allegation is that, in the year 1916, the defendants again attempted to take possession and hence he brought the present suit for a declaration that he is the owner of the grove No. 174 and that the defendants have no right to, and possession over, it is the alternative, the plaintiff prayed for possession if the defendants dispossessed him during the pendency of the suit. The defence was, as usual, a denial of all the statements is the plaint, the contention put forward in the additional pleas being, first, that the sale deed of 1884 related to the Zemindari only and did not effect the groves-and, secondly, that even if the plots on which the groves stood be considered to have been included in the Zemindari sold, the contesting defendants were ex-proprietary tenants. It was further contended that as the plaintiff or his predecessor-in-title had not been in possession of the grove in suit within the twelve years proceeding the institution of the present suit, the claim was barred by the rule of twelve years limitation. Other pleas were raised but we are not concerned with them. The Munsif in a vary perfunctory judgment decided the first issue against the plaintiff; the first issue being: "Was the father of the plaintiff the purchaser of the grove in suit and, if so, did the defendants retain the rights of ex-proprietary tenants as to it?" It is curious to find no decision whatever of the real question as to whether the sale deed of 1884 passed the groves to the plaintiff s predecessor in title. He assumes that the groves were sold and then refers to the entries in the revenue papers showing that the defendants were entered therein as ex-proprietary tenants. The same unsatisfactory state of affairs is to be found in his decision in the second issue as to whether or right the plaintiff or his predecessor-in-title had been in possession of the grove in suit and the claim was barred by limitation.

(2.) HOWEVER, he name to the conclusion that he suit was so barred. On appeal to be lower Appellate Court has found, first, that the predecessor-in-title of the defendants sold this grove and another grove to the plaintiff s predecessor-in-title by virtue of the sale-deed of 1884. He also found that the defendants were in possession as ex-proprietary tenants of the plaintiff and were so entered in the revenue papers continuously since 1308 Fasli, and that this entry has exited ever since the last Settlement, The conclusion to which he arrived after this finding was, "that the defendants have been in possession as ex-proprietary tenants of the land in suit adversely to the plaintiff at least since the time of Settlement which was much more than twelve years before the institution of the suit." It is difficult to understand what the word adversely" in this part of the judgment means. If the learned Judge meant to say that this assertion of ex-proprietary rights was adverse to the Zemindar s right to immediate possession, one might be able to follow it, but in that case we think that, of necessity, a declaration should have been given to the plaintiff that he was, as Zemindar, the owner of this grove. On the other hand, if the learned Judge meant that, because the defendants had acquired a right adverse to that of the Zemindar, it would be a contradiction in terms because a tenant s possession could never be adverse to his own landlord. We take the great meaning to be which the learned Judge probably intended, and in that cape, on the findings of fact arrived at by the lower Appellate Court, we think, on the authority of Balmokund v. Balu 25 A. 498 : A.W.N. (1908) 112 (F.B.), that this is a proper case in which the plaintiff is entitled to a declaration that he is the owner of the grove in dispute but he is not entitled to immediate possession over it so long as the ex-proprietary tenancy of the defendants subsists. As the plaintiff has failed to substantiate that the defendants are trespassers pure and simple and the relief we are granting to him is simply to avoid further litigation, we think that the plaintiff is not entitled to his costs but must pay the costs of the defendants-respondents throughout. In the result, the decrees of both the Courts below are modified and in lieu thereof we substitute a decree in favour of the plaintiff as stated above.