GOPAL RAO Vs. SITARAM

JUDGEMENT

(1.) THE appellant is recorded malik makbuza proprietor of 267 acres of land in mouza Palandur which is in dispute in this appeal. His case is that since the year 1896 his father used to let it out to the ancestors vi the defendants for growing vegetables on yearly leases after he had reaped dhan crop therefrom, that this went on till 1328 Fasli when the defendants refused to vacate the land. The defendants have since been reaping both the crops. The present suit was accordingly filed on 4-1-1923 for recovery of possession of the land from the defendants. The defendants denied that they held the land in suit under any agreement or contract of lease from year to year. They maintained that they had become occupancy tenants of the land and were not liable to be ejected. They also denied that dhan crops were enjoyed by plaintiff's father as alleged by plaintiff.

(2.) THE first Court came to the conclusion that the defendants' ancestors had cultivated the fields, and that the defendants continued to cultivate them but that since the year 1892 the plaintiff's father was raising the dhan crop and the defendants the vegetable crop. It also further held that defendant's forefathers had by reason of their continuous possession of the land in suit for over 12 years (prior to 1-1-1884) acquired occupancy rights therein but that their rights were restricted to the cultivation of the vegetable crops only, and that consequently plaintiff could not eject the defendants outright but that he could eject them so far as they interfered with his right to raise the dhan crop. The annual tenancy set up by the plaintiff was held not' proved and in holding as it did that the defendants tenancy had not been determined a decree was passed in plaintiff's favour declaring the plaintiff's right to claim dhan crop only and directing the defendants to hand over possession of the land to plaintiff for that purpose on the 1st of May each year. Both parties were dissatisfied with this form of decree and plaintiff appealed to the Additional District Judge, Bhandara.

(3.) AGAINST this dismissal plaintiff comes up in second appeal and urges that the defendants' position was not that of tenants much less of occupancy tenants but that at the most they could be only licensees liable to be turned out under Section 60 of the Easements Act; that the finding of the Courts below that the defendants and their ancestors had acquired occupancy rights is based on no evidence legally admissible and that in any case the lower appellate Court was not justified in dismissing the suit in its entirety so as to deprive the plaintiff of the right to enjoy dhan crop which was affirmed by the first Court's judgment.