BEHARILAL ASARAMSAO Vs. GYANIRAM NARAYAN POWAR AND OTHERS

JUDGEMENT

(1.) THE facts can be stated quite shortly. Two brothers, Ganpat and Sohba, were members of a joint Hindu family, and they owned the village Sihora. Many years ago they partitioned, and the village was consequently imperfectly partitioned by the revenue officer and divided into two pattis. Patti No. 1 fell to the share of Ganpat and patti No. 2 to that of Sonba. Ganpat nevertheless continued to retain a house which he had been occupying before the partition and which, at the partition, fell within patti No. 2. Sonba similarly retained in his possession a house which he had occupied before the partition and which at partition fell in patti No. 1. We are concerned here with the house which fell in patti No. 1 and which is now occupied by defendants 1 and 2 who are the successors of Sonba. Some time after this partition Ganpat's son, Nanhoba, sold 6 annas out of the 8 annas' share which fell to him to the plaintiff's predecessors; and the plaintiff is now in possession of this patti No. 1 which has been converted into a mahal and is the lambardar of that mahal.

(2.) SOME time in the years 1894-96 when Napier's Settlement was in progress these two pattis were converted into mahals; patti No. 1 being mahal No. 1 and patti No. 2, mahal No. 2. As stated above, the plaintiff is now a 6 annas' cosharer and the lambardar of mahal No. 1. Defendants 1 and 2, the successors of Sonba, are the proprietors of mahal No. 2. The question which arises in this appeal is whether the defendants are licensees of the house which was originally Sonba's and which was placed in mahal No. 1 at the partition. The learned Counsel for the plaintiff argues that according to Narain v. Behari A.I.R. 1915 Nag. 119 which embodies the law later codified as Section 203, C.P. Land Revenue Act, 1917, the landlord is the owner of all land in the abadi and that prima facie every person owning land in the abadi is a licensee subject to the provisions which are now to be found in Section 203, Land Revenue Act. He also relies on Chhaganlalsa v. Nathu Singh for the proposition that any person who claims to hold otherwise than as a licensee must prove his right to do so. In our opinion, neither Section 203 nor Narain v. Behari A.I.R. 1915 Nag. 119 applies to this case because though the learned Counsel for the plaintiff-appellant is right in saying that the presumptions on which he relies ordinarily obtain they are displaced when further facts are known, namely, that the person in occupation was originally a proprietor of the mahal or the patti as the case may be. That distinction is drawn by Grille J. in Mt. Sitabai v. Hasan 18 N.L.J. 143 Here, as we have stated, it is known that the defendants and their predecessors were the proprietors of the mahal before the partition. Consequently, Section 203 would not apply to them.

(3.) THESE are not the facts stated in the judgment under appeal, and this being a Letters Patent Appeal we cannot travel beyond the facts given. Niyogi J. states that nothing more is known except that the two brothers were once joint, that they partitioned and that Sonba, and after him the defendants, continued to occupy the site which fell to patti No. 1 "as before". But even if that were not so, the mere fact that ground-rent was not fixed by the Deputy Commissioner would not deprive the previous owner of his right to retain the land. It is for the other cosharer who, in the imperfect partition, is made the proprietor of the Mahal to ask the Deputy Commissioner to fix that ground-rent. If he does not choose to do so then the cosharer in occupation of the dwelling-house is not bound to pay the rent until it is fixed. Section 174 of course applies when there is an imperfect partition but perfect partition effects no radical change in the position so far as these matters are concerned though the partitioning officer is empowered, if he thinks fit, to make such modifications in the pattis as he considers fit. We are not told that any modifications were made and, consequently, it must be presumed that the old state of facts continued when the imperfect partition was made perfect. Those facts, as we have said, are that Sonba and his successors were entitled to retain the house in question on payment of ground-rent when such rent is fixed by the Deputy Commissioner. Once these facts are conceded then it follows that the defendants are entitled to use this land as they choose, and one of the uses is to sub-let it to other persons for the purpose of a bidi-factory or otherwise. By such action they do not forfeit their rights because Section 174 says nothing about forfeiture. We decided in First Appeal No. 138 of 1935 that Section 203 does not apply as between co-sharers.