SHEIKH MOHARAMDI Vs. SHEIKH ASMAT AND SHEIKH RAHAMAT

JUDGEMENT

(1.) This is an appeal by the defendant and arises out of a suit brought by the plaintiff for khas possession of the land in suit on establishment of his jote right. The defence of the defendant was that al thought the plaintiff was the jote dar of the land in suit he had abandoned the land and that after he had left the village the defendant got a settlement of the land from the landlord and was, therefore, rightfully in possession. The defendant also pleaded the special limitation as a bar to the suit. Both the Courts have decreed the plaintiff's suit.

(2.) In this second appeal the learned Vakil who appears for the defendant-appellant contends that the finding of the lower Appellate Court that the plaintiff did not abandon the land was erroneous and in support of this contention cited the case of Gober Sheikh V/s. Alipuddin Sheikh 51 Ind. Cas. 356 : 30 C.L.J. 13. Now the question as to whether there has been an abandonment of the land by the raiyat is primarily a question of fact depending no doubt upon a number of circumstances to be proved in each case. The learned Subordinate Judge" has considered the circumstances and has held that there was no intention on the part of the plaintiff to abandon the land and that except that there was non-payment of rent for a number of years there was no fact which supported the plea of the defendant of abandonment by the plaintiff. Now the case cited by the learned Vakil shows that mere non-payment of rent is not sufficient for establishing abandonment of a jote by a raiyat. No doubt that fact when taken with other circumstances a Court of fact may come to a conclusion one way or the other according to the circumstances of a particular case. Here the learned Subordinate Judge in spite of the fact that there was nonpayment of rent for some years in the circumstances of this case has come to the conclusion that the plaintiff did not abandon his holding. In this view, I think, there is no error of law in the finding of the learned Subordinate Judge upon this question.

(3.) The next point which was urged by the learned Vakil for the appellant is that the suit upon the findings was barred by two years limitation. I do not think that this contention is sustainable. The learned Subordinate Judge has clearly found that the landlord had no hand in the ouster and that the defendant was recognized as a tenant after he had entered into the land on his own account and kept the plaintiff out of possession. This ground also fails.