SHOHRAT SINGH Vs. JHAGRU

JUDGEMENT

(1.) The plaintiff in the Court of first instance is, admittedly, the zemindar of Mauza Kataila. According to him the defendants were non-occupancy tenants who have been recently ejected from their cultivatory holdings in Mauza Kataila. Pie says that the defendants in the time of his predecessor and with the permission of his predecessor built a dwelling house and a cattle-shed for the purpose of agriculture. As the defendants have been ejected from all the cultivatory holdings, he contends that they have no longer any right of residence on the land in dispute. He asked them on several occasions to quit but they have failed to do so. His prayer to the Court was that he might be given a decree for possession of 5 biswas of pukhta land as set out in the plaint and the defendants be directed to remove their materials from the land.

(2.) The defendants in their written reply took up the position that the house built by them was built for all purposes for which a house could be used. It had been in existence for more than 12 years, indeed for many generations, hence the plaintiff is not entitled to recover possession. The Court of first instance had no hesitation in awarding the plaintiff a decree. It held that the house was appurtenant to the agricultural holding and that when a tenant ceases to have any holding, his right of occupation in the abadi ceases, this, of course, in the absence of a special contract to the contrary and in this case no special contract was pleaded. It accordingly gave the plaintiff a decree for ejectment.

(3.) The defendants went in appeal and their contention in appeal was practically the same as in the Court of first instance, with this addition that there can be no presumption in law regarding the house of a tenant that that house was built merely for agricultural purposes. They laid stress upon the house being a very big one, consisting of three sections, defendants had always considered it their place of residence, made additions to it from time to time, and the suit was time-barred. It will be noted in these pleadings that no suggestion has been made at any stage of the case that the defendants are possessed of more than one house in the abadi. The lower Appellate Court held that there were two points before it for determination; the first point that it laid down was whether the house in dispute was or was not appurtenant to the agricultural holding. Secondly, it said that there was absolutely no evidence on the record to show that the house-site was an appurtenance to the agricultural holding. There was no presumption in law that the house occupied by a tenant was of necessity an appurtenance to the cultivatory holding. The learned Subordinate Judge said that he could find no precedent to this effect. On the contrary, he referred to the case of Moti Ram v. Munna Lal S.A. No. 1119 of 1911 and to the case of Net Ram v. Tej Ram 20 Ind. Cas. 260 : 11 A.L.J. 445. As he understood these judgments he held that there was no presumption that a site occupied by a dwelling house of every agricultural tenant was necessarily an appurtenance to the agricultural holding. The question was a question of fact and not of law and it rested with the plaintiff zemindar to prove that the house was the appurtenance of the tenancy. In the present case there was no evidence that the defendants held the site as an appurtenance, they must be held to have occupied the site adversely to the plaintiff and his predecessor and they are now owners.