JAGESHWAR PRASAD Vs. SURAJ BALI SINGH

JUDGEMENT

(1.) The question before us is whether the learned Judge of this Court was right in holding that the evidence before the lower appellate Court would not justify the inference which he drew from them. The matter is not really a question of fact but a question of law.

(2.) The plaintiffs who are the appellants in this Court brought the suit out of which this appeal has arisen to obtain possession over a certain plot of land on the allegation that it formed their threshing floor and the defendants, who are co- sharers in the village, had unlawfully taken possession of the same and had built upon it. The learned Judge of the lower appellate Court found that the plaintiffs were tenants in the village, that they had been in occupancy of the plot in suit for more than twenty years and used it as their threshing-floor. He found that there was no clear evidence to prove that the periods of the tenancy of the agricultural lands and of the holding by the plaintiffs of the land in suit were co-extensive. But he said that the fact that the plaintiffs had been holding the land and using it for the purposes of threshing corn was enough to raise the presumption that they held the land as a part of the contract of tenancy. The learned Judge of this Court held that if the evidence fell short of proof that the periods of the holding of two things, viz., the agricultural land and the threshing-floor were not co-extensive, the inference drawn by the lower appellate Court could not be drawn.

(3.) We are clearly of opinion that this opinion of the learned Judge is not correct. The burden in the circumstances would be on the defendants to show that the land which is claimed as the threshing-floor was really not held as a part of the contract of tenancy but otherwise. A tenant may begin by holding a small portion of land in the village and then may grow up, holding gradually more lands. If he was allowed to occupy land for the purpose of his agriculture from time to time, it would not be necessary for him to show that the threshing-floor was given to him for use when he first occupied land in the village. As we have said, the burden lay on the defendants to show that the user of the land was not a part of the contract of tenancy. The case is really governed by the authority in Dalai V/s. Bhajoo [1894] 16 All. 181. We are entirely in agreement with this case and think that the learned Judge of this Court was in error.