TIKA Vs. BIBI KALSUMULNISSA,

JUDGEMENT

(1.) This is a first appeal from an order made by the Additional Subordinate Judge of Bulandshahr. The defendants who are appellants were sued by a zamindar. The sum claimed by the plaintiffs was Rs. 75, in the name of compensation as the price of 4 trees which it was alleged the defendants had wrongfully cut. The learned Munsif who heard the case in the first instance dismissed the suit, but in the lower appellate Court the Munsif's judgment was set aside and a remand, was made for the purpose of ascertaining the amount of compensation due. The defendants plead in defence Secs.183, 184 and 185 of the Agra Tenancy Act of 1926, in particular they rely upon Section 185 which enacts that no suit shall lie under the provisions of Ch. 11 which relates to rent free grants except in certain specified cases. The defendants claim that they hold the grove in question as a rent free grant and that no suit lies against them because of the provisions of Section 185. Now to succeed in this defence it is essential for the defendants to prove that if they come within the four corners of this section, they have to establish all the ingredients necessary for the application of this section. In my opinion they have failed to discharge this onus.

(2.) In the first place it may be noted that Section 185 refers to suits under the provisions of Ch. 11. This suit was brought in the civil and not in the Revenue Court and upon that ground ground I am prepared to hold that Section 185 has no application. Assuming however for the sake of argument that Section 185 is applicable, the further question emerges: Have the defendants succeeded in proving all that the section demands? The section demands in the first place that it should be established that the land in question was transferred to the defendants or their ancestors for valuable consideration, Counsel for the defendants has argued that inasmuch as this was a grant made in return of the services to be rendered it was made for valuable consideration within the meaning of the proviso of Section 185. It may be noted however that in their-written-statement the defendants denied that the grant was a service grant. Apart from that however the learned Additional Subordinate Judge has come to a definite finding of fact that the grant in question was not a service grant. He in the course of his judgment states that there is not the slightest evidence nor even a suggestion in the present case that Tulshi (who was the ancestor of the defendants) had obtained the land in dispute for any valuable consideration.

(3.) In view of that finding and of the fact that the defendants adduced no evidence to prove that the original grant was a service grant I am of opinion that the defendants cannot claim to come within Section 185.A further provision of Section 185(c) is to be exempt from any suit the land held rent free by a holder whose title is "based on a transfer of the land for valuable consideration must be made by the landlord or the rent free holder thereof before the 22nd December 1873 and at that date the right of the land lord to resume the land had been barred by Section 28 of Act 10 of 1859 by Art. 130 of the Second Schedule of the Indian Limitation Act, 1871. Now the defendants have not attempted to prove that the landlord's right to resume the land was barred by either Section 20 of 1859 or by Section 130 of the Second Schedule of the Limitation Act.