MANIKYA BAHADUR Vs. NAZIR MAHOMMAD

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit which has been described as one for rent. The plaintiff alleges that he is the owner of a large estate, that the defendant is a tenant of some land within his estate, that he has taken advantage of his position as such tenant to take possession of the land in suit without any right and without settlement of rent and that the plaintiff was first apprised of this circumstance in 1898 when, in the course of Settlement proceedings, the defendant asserted that the was entitled to occupy this land without payment of rent to the proprietor. The plaintiff, therefore, prays for a decree for rent for three years at a rate described by him as fair and reasonable rate. The defendant resists the claim on the ground that he and his predecessors have held the land adversely to the knowledge of the plaintiff for 50 or 60 years and that the land is rent free The Court of first instance found that the land was situated within the ambit of the mal land of the estate of the plaintiff. But the Court also found that the defendant had failed to prove the alleged rent-free grant in his favour by the plaintiff or his predecessors. As regards the assertion of hostile title by the defendant, the Court came to the conclusion that for more than 12 years prior to the commencement of the suit, the defendant had asserted to the knowledge of the plaintiff that he was entitled to occupy this land without payment of rent. The Court then proceeded to make a decree in these terms: "that the suit be decreed in part and that the plaintiff s alleged title to the properties in dispute be hereby declared and that his claim for assessment Of rent and. for wasilat do stand dismissed."

(2.) This decree, it will be observed, is self-contradictory. If the title of the plaintiff as landlord is declared, it cannot very well be held that what is described as the claim for assessment of rent and for mesne profits fails on the ground of adverse possession. The defendant, however, was satisfied with this decree; it did not hurt him in any way, as the plaintiff had according to the Court failed to establish his claim to make the defendant liable for payment of rent. The plaintiff thereupon appealed to the Subordinate Judge, who held that the claim for assessment of rent was barred by limitation because the defendant had, more than 12 years prior to the commencement of the suit denied the title of the plaintiff to his knowledge to have rent assessed on this land.

(3.) The plaintiff has now appealed to this Court and has argued that as the Court of first instance decreed the suit in part and declared this alleged title to the properties in dispute, the inference follows that the relationship of landlord and tenant must be deemed to have existed between him and the defendant and that consequently the defendant could not, during the continuance of the tenancy, set up any hostile title. In our opinion this contention is fallacious. The judgment of the Court of first instance shows that all that the Court intended to declare was that the land in dispute was situated within the ambit of the mal land of the zemindari. If that had been explicitly stated in the decree there could have been no room for misapprehension. The ambiguous language used in the decree has been made the foundation for the argument that the Court intended to find, and did as a matter of fact find, that the relationship of landlord and tenant existed between the parties. The Court did not and never intended to find anything to that effect. The plaintiff, indeed, came into Court on the allegation of trespass; his case was that the defendant had taken possession of the disputed land without any right. The plaintiff has never treated the defendant as his tenant and has never realised rent from him. The defendant did not plead that he held the land as a tenant under the plaintiff. His case throughout has been that he and his predecessors held the land in adverse right to the knowledge of the plaintiff for much longer than the statutory period. Under these circumstances there was no room for any possible finding that the relationship of landlord and tenant existed between the parties. We, therefore, do not feel embarrassed by the declaration given by the Court of first instance to the plaintiff.