BHAGAUTI PRASAD Vs. CHANDRIKA PRASAD

JUDGEMENT

(1.) The plaintiff Bhagauti Prasad who is the zamindar of the village Mohanpur in the Gorakhpur district, brought a suit for recovery of rent against Chandrika Prasad alleging him to be a tenant of 14 holdings situated in the said village. On a plea being raised by the defendant that he was holding the property as a proprietor and that he was in adverse possession of the same, the matter was referred to the civil Court and on a finding of the civil Court against the contention of the defendant the revenue Court decreed the claim for rent against the defendant. Against this decree the defendant appealed to the District Judge of Gorakhpur and the learned Judge holding that the defendant had established his adverse possession against the property dismissed the claim. The plaintiff has now made a second appeal to this Court and the question before me is whether the finding arrived at by the lower appellate Court with regard to the adverse possession of the defendant is legally correct or not. The defendant has been in possession of this property since the year 1883. His possession commenced ostensibly under proprietary title. During this time he has not paid any rent to the zamindar of the property. Whenever a question arose as to the nature of defendant's possession, defendant asserted that he was in proprietary adverse possession of the property. Prima facie these facts which are not disputed before me establish a clear case of adverse possession and relying upon these facts the lower appellate Court has found the adverse possession proved. The contention of the plaintiff, however, is that the defendant was his tenant and the mere long possession by a tenant, even if it is accompanied by non-payment of rent and by assertion of hostile title, would not convert the possession of a tenant as adverse to the zamindar and the controversy in the case is whether or not defendant can be regarded as the plaintiff's tenant during all these long years or at any time during the intervening period. It is not asserted that any tenancy arose by reason of any contract or lease between the parties; but it is contended that a tenancy arose by operation of law and by reason of an order of the revenue Court. Whether this is so or not is the only matter for consideration in this second appeal.

(2.) In order to appreciate this, it is necessary to go into certain facts. The plots which are now in dispute form part of a larger plot of 26 bighas odd which at one time was owned by a man named Uma Prasad. In addition to these 26 bighas odd which were sir plots Uma Prasad owned in the village a 5 as. 4ps. share. On 5th April 1883, Uma Prasad made a gift of 26 bighas odd of sir plots mentioned above in favour of his younger brother Chandrika Prasad and within four days of this on 9 April 1883 Uma Prasad sold his 4-anna share in the property to Sarju Prasad the father of Bhagauti Prasad the present plaintiff. I have not been able to trace exactly what happened to the remaining property of one anna odd which remained with Uma Prasad after the sale and perhaps it is not very material to go into the details of this transaction. In the settlement which followed the sale Chandrika Prasad was recorded as the sir holder of these plots measuring 26 bighas odd apparently on the basis of the deed of gift mentioned above. In 1891 Sarju Prasad being dead, his son Bhagauti Prasad the present plaintiff, brought a suit for a declaration that the gift made by Uma Prasad to his brother Chandrika Prasad dated 5 April 1883, of 26 bighas odd of sir plots was a fraudulent gift and was void against him. This suit was dismissed by the trial Court but was decreed by the appellate Court and as a result of the decree of the appellate Court the gift of 5th April 1883 was declared fraudulent and void against Bhagauti Prasad though by the decree of the appellate Court Uma Prasad's rights as ex-proprietary tenants were preserved in the said sir plots. In 1894 a partition of the village took place and a qura was allotted to Bhagauti Prasad and these sir plots were put in the qura of Bhagauti Prasad of which he was recorded as the proprietor. The entry however, with regard to the rights which Chandrika Prasad held in these plots as recorded in partition proceedings was conflicting and confusing. It was stated in one column of the proceedings that he was an arazidar and in other columns of the proceedings it was stated that he was holding certain number as sir dakhilkari and a rent of Rs. 8-13-9 was stated to be assessed upon this holding. Certain other numbers were stated to be held by Chandrika Prasad as khudkasht gher dakhilkari and a rent of Re. 1-4-6 was assessed against it and a certain other plot was entered as ex-proprietary tenancy of Chandrika Prasad. The facts are not quite clear to me here, but it appears that probably this ex-proprietary holding came to Chandrika Prasad as an heir of Uma Prasad after his death.

(3.) Mr. Pande's contention is that the result of the partition proceedings was that Chandrika Prasad became in the eye of law a tenant of Bhagauti Prasad and this contention is based on the ground that on the holding a nominal rent was assessed and Chandrika Prasad was mentioned as arazidar in village papers. I have already stated that the partition entry is somewhat conflicting. An arazidar may be an under-proprietor, may be a plot proprietor, may be a tenant and may have interest in land short of a proprietor. The holding also is described as sir dakhilkari and khudkasht gher dakhilkari. It is true that a rent has also been shown against sir dakhilkari and khudkasht gher dakilkari. But it is not possible to say on the basis of these entries that a relationship of landlord and tenant came into existence between the parties by operation of law. Apart from the vagueness and indefiniteness of the entry there is one other difficulty in the case that in partition proceedings a dispute whether a person is holding the property as a tenant, does not properly arise and the mere fact that a person has been recorded in partition proceedings as a tenant will not make him a tenant in the eye of law if in fact such a relationship did not arise between the parties.