BHAGWAT PRASAD SHUKUL Vs. NABI MOHAMMAD

JUDGEMENT

(1.) This is a plaintiff's appeal. The suit was brought by the plaintiff, who is the sole zamindar of village Imilha, against the defendants, praying that he may eject the defendants from their houses with permission that they could remove the materials thereof.

(2.) It is admitted that the plaintiff is the zamindar and owner of the site of the houses in question. The defendants occupied the site of the houses and they also held fairly large agricultural holdings in the village, and in 1923, as they had failed to pay rent for some "considerable time, they were ejected in proceedings under Section 429, old Tenancy Act. The question which arises for decision in this case is whether the fact that the defendants have now ceased to be tenants of the village entitled the zamindar to eject them from the houses which they occupy.

(3.) The village in question is an ordinary Indian agricultural village. The ordinary position, as I understand it, in Indian villages is this, that a zamindar generally grants sites for houses in the abadi of the village to such persons as are useful to him from the point of view of the village life. The grant of sites in the abadi would generally be made to people who were carrying on agriculture. He would also grant sites to people who were useful to the village from the agricultural point of view, such as, carpenters and smiths and persons of that sort. Officials in the village would, of course, also require to have premises in which to live in the abadi, and the condition of the licence to live in the abadi would necessarily be that the tenant did carry on these particular works for which he was granted the right to live in the abadi. It has been held by a Judge of this Court, and a very experienced Judge, in the well-known case of Shohrat Singh V/s. Jhagru [1915] 13 A.L.J. 745, that there is a legal presumption that the occupier of any house in the abadi of an agricultural village, occupies that house as an appurtenance to his agricultural holding and that, if he abandons or is ejected from the tenancy, unless there be some special custom to the contrary, the site reverts to the zamindar, and the tenants who builds a house builds it at his own risk and has to remove the materials and vacate the site. That decision was followed in Ram Harakh v. Ambika Datt Ram [1918] 21 O.C. 257. The Judicial Commissioners in that case were Mr. Lindsay and Mr. Daniels, both of whom were Judges highly experienced in Indian village life and customs, and subsequently became Judges of this High Court. I think, therefore, that there can be no question that it has been clearly established that if there is a zamindar and a tenant of an agricultural village, who occupies a house in the abadi, there is a legal presumption that he holds the site as appurtenant to his tenancy and has no right to retain it against the wish of the landlord on ceasing to be a tenant in the village. Of course, like any other presumption, this presumption is open to rebuttal. It may be, as Knox, J., pointed out, that there is some special custom or contract, but the onus is on the defendants to establish such special contract or custom. It is for him to rebut the presumption which exists. The question in this case is have the defendants discharged the onus which was upon them? In my view, they have not.