NANDAN SINGH Vs. GANGA PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit instituted in the Revenue Court to recover a sum of money claimed to be payable as arrears of rent under Section 34 of the Agra Tenancy Act. The facts have been very clearly ascertained and are as follows. The plaintiff and the defendant or their predecessors in title were co-sharers. Disputes arose between them, which resulted in an arbitration award and a decree in accordance therewith. Under that decree the plaintiff became entitled to the property in respect of which the present claim is made, notwithstanding that the defendant had previously been in possession and occupation of this particular land. Under the arbitration award and the decree following it the defendant had to give it up to the plaintiff. He did not do so, A suit for his ejectment was then instituted in the Revenue Court. In this suit the defendant was described as a cultivator, but in the body of the plaint the actual facts were set out as stated above. The arbitration proceedings were referred to, the decree which followed on the award was mentioned, as also the fact that the defendant had insisted upon remaining in possession though many times asked by the plaintiff to give up possession. The defence was not that the defendant was a proprietor, but that he was the ex-proprietary tenant and not liable to be ejected. He based his claim to be ex-proprietary tenant on the allegation that the land in dispute had been his sir before the arbitration proceedings. The award had already decided that the land was not his sir nor his khudkasht, and the Revenue Court gave a decree to eject the defendant, holding that he was a non-occupancy tenant.

(2.) The present suit has now been instituted under Section 34 of the Tenancy Act. The court of first instance ascertained the amount which it thought fair and equitable to be paid by the defendant under the circumstances. The lower appellate court reversed the decree of the court of first instance and dismissed the plaintiff s suit. Hence the present appeal.

(3.) Section 34 is as follows: A person occupying land, without the consent of the landholder, shall be liable for the rent of that land at the rate payable in the previous year, or, if rent was not payable in the previous year, at such rate as the court may determine to be fair and equitable, but he shall not be deemed to hold the land within the meaning of Section 11 until he begins to pay rent therefor.