KESHO PRASAD SINGH BAHADUR Vs. TRIBENI SAHAY

JUDGEMENT

(1.) This appeal has arisen out of two suits, NOS. 77 and 82 of 1928, which were instituted in the Court of the Munsif of Buxar. The suits were dismissed in the first Court and two appeals were preferred which were heard together and disposed of by one judgment of the Subordinate Judge of Shahabad, who upheld the decision of the first Court. The present second appeal is against that decision. The appeal has not been pressed in so far as it relates to the points that were in dispute in suit No. 77; and, in regard to the points that were raised in suit No. 82, the only point that has been pressed by Mr. Das for the appellant is the claim for assessment to rent.

(2.) The land in dispute was entered in the record of rights as the malik's gair mazrua land. In the Remarks-column there was a note that the trees were in possession of the tenants. The plaintiff's case was that the land had been settled with the defendant . only for the purpose of planting trees of which he (the plaintiff) was entitled to half the fruits. He alleged that the defendant refused to make over to him his share of fruits of the trees and hence he was obliged to institute the present suit. Both the Courts below have found that the land in suit is rent-free land of the tenant who is not liable to be assessed to rent.

(3.) Mr. Das, who has appeared for the appellant, has cited three Privy Council decisions: Madhavrao Waman V/s. Raghunatha Venkatesh AIR 1923 PC 205, Nainapillai Marakayar V/s. Ramnathan Chettiar AIR 1924 PC 65 and Muhammad Mumtaz Ali Khan V/s. Mohan Singh AIR 1923 PC 113, and contends that by these decisions it is established that a tenant who occupies a certain status cannot by prescription acquire as against his landlord a different status. It is clear that those decisions have no application to the facts of the present case. It is not the defendant's case that the land in suit was at one time subject to rent, but that by prescription he has acquired a right to hold it rent-free. His case is that the land has always been rent-free and that he has never been liable for rent.